Masterclasses in Welsh Housing Law – Another reflection

At the Masterclasses, I made the point about the lack of litigation on Welsh housing and homelessness law, and the need for more challenges to settle outstanding areas of dispute.  It is, I think, a personal view and should not be ascribed to the other presenters.  In the below response, a delegate has taken issue with my point for entirely understandable reasons:

“We listened to lots of excellent speakers explaining the law and the cases backing that up. However, I felt that what was missing was a recognition of ‘the people’. Coastal is an obvious exception, but in the vast majority of cases there are winners and losers. I realise the purpose was about legal information sharing and the passion of those presenting showed their interest in all the nuances. However, I question whether it is always in the best interest of those being represented to drag things out to “prove a point”. Letting housing is fundamentally a “people management” game. I always say that you only end up at the law if you have failed to deal with the people issues. Clearly there are great examples of injustice righted through court action, but wouldn’t it have been better if the local authority (or who ever it applies to), made the right decision without needing the legal remedy? I say this because I have seen cases where lawyers are encouraging another appeal (even at Supreme Court level) when a tenant is not really that bothered. They just want to get on with their life. This is particularly true where the point at issue will not, for example, prevent eviction, it would just require the landlord to go around and serve a new notice and start again (for example some defect in section 173 notice). This actually prevents the tenant from moving on and starting their new life. They are going to have to move and it just leaves them in limbo for longer. It can also cost the public purse a lot of money. If a tenant is getting legal aid (more rare these days I admit but still possible) then is the point worth arguing and reducing the funding for other, possibly more worthy, cases?

None of this diminishes from the excellent event. I used to teach outdoor pursuits and with Kayaking I read a book where the author made a really clever point. He said learning to roll (inverting the boat and bringing it back right way up with a sweep of the paddle and a flick of the hips) is a sign of great success, thereafter having to is a sign of failure (you fell in!). I use this analogy all the time in teaching. Learning the law is a sign of success, you are better educated and likely to be more compliant, having to rely on it is a sign you failed to be able to deal with the people issues. So, I am not in anyway reducing the value of the learning, just that the knowledge is only one part of the picture. This, of course, is very much in keeping with the court desire to use alternative dispute resolution.”

My response is: The funding of litigation can feel like it is using public resource which could be better spent on actually doing repairs, or building places for people to live in.  A different viewpoint is that litigation provides not only individual benefit but also a response to the community need for judicial interpretation of, and clear guidance about, legal issues which need to be taken at some point.  But, there is a conversation to be had, and I am grateful to the delegate for raising this problem (as it is something that I do think about).